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Gov. Gretchen Whitmer's executive order faces obstacles, including some police

Gov. Gretchen Whitmer is grappling with a lawsuit from the Republican-led Legislature, the sequel of a protest whose armed attendees drew the national gaze, and threats over her executive orders.

But she also faces some Michigan law enforcement agencies saying they won’t enforce the orders in response to the novel coronavirus.

Amid hubbub surrounding an Owosso barber working in defiance of her order, Shiawassee County Sheriff Brian BeGole issued a letter Monday saying that while the judicial branch weighed Whitmer’s choice to extend a state of emergency without the Legislature’s OK, his officers won’t actively enforce the governor’s mandates.

"I have decided, within my authority, that our office cannot and will not divert our primary resources and efforts towards enforcement of the Gov. Whitmer's executive orders,” he said

And he’s not alone. Livingston County Sheriff Mike Murphy told the Livingston Press & Argus that his office has “basically decided to not do any enforcement,” even as a gym opened in direct defiance this month.

Four northern Michigan sheriffs' offices issued a joint press release in mid-April — before the state of emergency supported by both Whitmer and the Legislature expired — saying Whitmer had overstepped her authority and they would not strictly enforce the orders.

Michigan Gov. Gretchen Whitmer, left, gives an update to the state's response to the coronavirus on Monday, May 11, 2020. Whitmer is joined by Chief Medical Executive Dr. Joneigh Khaldun, center, and Chief Operations Officer Tricia Foster.(Photo: State of Michigan)

But Attorney General Dana Nessel issued a letter of guidance to law enforcement last week affirming the enforceability of Whitmer’s stay-at-home order, press secretary Ryan Jarvi said in a statement.

The orders are valid until a court deems otherwise, not the other way around, he said.

“While we are all anxious for a court to provide additional clarity, taking the position that the Governor’s executive orders are presumptively invalid — a position no court has agreed with — is wrong and places the public health and rule of law in jeopardy,” he said. “(It’s) not that these local law enforcement agencies can’t enforce the orders, they simply don’t want to."

Voluntary compliance

Most police departments are responding to complaints, focusing on education and working to get voluntary compliance, which they do the majority of the time, said Bob Stevenson, executive director of the Michigan Association of Chiefs of Police and a former Livonia police chief.

Some departments are reluctant to issue citations directly because of the executive branch and Legislature’s legal battle — set for oral arguments Friday. So some departments are passing reports to prosecutors instead of issuing citations on the street.

“Ultimately, that liability can come back on them, so they’re just seeking that one extra step,” Stevenson said.

Among agencies forwarding cases to their county prosecutor are the Warren Police Department and the Lansing Police Department.

Warren Police Commissioner Bill Dwyer declined to give reasoning for the move, but said the decision was made with other agencies and the Macomb County Prosecutor’s Office, which did not immediately respond to request for comment.

The first time a violation is spotted, officers will issue a warning, Dwyer said. The next time, a report is sent.

The orders are still being enforced, and officers conducted at least 100 responses to complaints in the last week, he said.

Lansing police are also giving a warning the first time and going over the order with the violator, spokesman Robert Merritt said, adding that if offenses are repeated a report will be done and sent to the prosecutor's office for review.

LPD had sent 11 reports to the prosecutor's office for review as of May 5, Merritt said. Three cases advanced to requesting warrants on charges of violating executive orders, but all three were denied, Ingham County Chief Assistant Prosecutor Mike Cheltenham said.

A prosecutor’s review

Oakland County Prosecutor Jessica Cooper has cases on her staff’s desk for a restaurant that wasn’t in compliance on Mother’s Day, a car wash and a construction company working to secure an unsafe structure, another construction company and a manufacturing facility who said they were making medical-grade bed coverings.

The county has not issued any directive to not follow the executive order, she said, and the cases are handled on a case-by-case scenario to see how egregious the action was and if it endangered the public.

Statutes usually have more clarity of language, and there's been confusion about requirements such as mask use, she said. In addition, the frequency of orders changing poses a problem, too.

“These orders lack clarity and they lack specificity, so what you’re asking police officers and prosecutors to do is enforce something that isn’t clear,” Cooper said.

Oakland County Sheriff Michael Bouchard said the changes in orders, such as allowing boating and golfing, have encouraged him that he’s taken a good approach.

His department doesn’t answer to the governor or the attorney general’s office, he said, saying that the orders are suggestions for a police agency to follow.

His office is not issuing citations but speaking with possible violators and submitting reports to the health department, he said.

Most possible violators are compliant, and most cases are unfounded, too, he said.

“We have found that working with our community, so we don’t become another source of anxiety or fear in this already anxiety-filled moment, is our chosen path and it has been extremely effective,” he said.

Reached Tuesday and Wednesday, the Detroit police said they did not have a representative available to speak.

'Educate and inform'

Many law enforcement agencies have said they are taking an informational approach to the executive order.

In Clinton County, north of the capitol, Sheriff Larry Jerue said no one has been charged with violating the orders and his deputies are taking an “educate and inform” approach.

When someone contends they are exempt from the executive orders, that information is sent directly to the Attorney General’s Office, although the sheriff’s office has never heard back from AG officials.

The executive orders are “almost unenforceable, quite frankly,” he said. “We’re asking for voluntary compliance. People should use good common sense. We strongly support social distancing, good hygiene and face coverings.”

Ingham County Sheriff Scott Wriggelsworth said his office has not sent any order violations to prosecutors related to businesses, and deputies are using an “ask, educate and inform” approach.

For people out committing crimes such as drunk driving or assault, officers have sought additional charges for violating the order, but the prosecutor’s office has not yet issued the charges, he said.

The Wayne County Sheriff’s Office has also focused on warning people if they are gathering, said Chief of Operations Mike Jaafar.

The majority of actual tickets have stemmed from other criminal charges, specifically prostitution cases, he said.

Monroe Police Chief Charles (Mac) McCormick IV said since the stay-at-home order started, he has had fewer than a dozen complaints about businesses opening when they shouldn't have, and some about landscapers at work, but all of them have complied with enforcement of the governor's stay-at-home order.

"There were no cases of someone refusing to comply," McCormick said. "In every incident we had, everyone has worked with us" and complied.

Discretion

Agencies have always had discretion with enforcement, Stevenson said.

Asked what if any action could be taken against agencies that won’t enforce the orders, Jarvi said his office doesn’t supervise sheriffs.

“If a sheriff isn’t doing his or her job, we would expect voters to express their displeasure at the ballot box,” he said.

The Livingston Press & Argus and Dean Cousino of The Monroe News also contributed to this report.

Editor's note: This story has been updated to correct the spelling of Sheriff Larry Jerue's name.

Contact Darcie Moran at dmoran@freepress.com. Follow her on Twitter @darciegmoran.